TO: Joint Procedure Committee
FROM: Andy Forward
DATE: August 3, 2010
RE: Rule 41, N.D.R.Crim.P., Search and Seizure
Amendments were made to Fed.R.Crim.P. 41 that became effective December 1, 2009. The amendments deal with the seizure of electronically stored information. The following is an excerpt from the Judicial Conference Report, which explain the amendments:
The 2009 amendment to Fed.R.Crim.P. 41(e)(2)(B) and (f)(1)(B) clarifies how the rule's warrant provisions apply to the seizure of electronically stored information. It sets up a two-stage process, authorizing the seizure of electronic storage media or the seizure and copying of electronically stored information and a subsequent review of the storage media or electronically stored information consistent with the warrant. No specific time period is imposed on any off-site review of the media or electronically stored information because the review time can be substantial, depending on the volume of information and the presence of hidden "traps" or encrypted data. A judge may impose a specific deadline, however, for the return of the storage media or access to the electronically stored information when the warrant is issued. Under the amendment, the inventory describing the electronically stored information may be limited to a description of the physical storage media seized or copied.
The Committee may wish to consider whether it wants to amend N.D.R.Crim.P. 41 to conform with the federal rule. North Dakota's rule is set up different from the federal rule, but contains similar provisions. If the rule is amended, some possible places to put the amendments would be subdivision (c) and paragraph (d)(1) of Rule 41.
Copies of N.D.R.Crim.P. 41, as previously amended by the Committee, and Fed.R.Crim.P. 41 are attached. The amendments to the federal rule are highlighted.